WA Violated State Law and HAVA

Failure to Use Properly Certified Voting Equipment Required by HAVA

The Help America Vote Act was established after the 2000 election and created the Election Assistance Commission or EAC. HAVA requires the Commission to serve as a national clearinghouse and resource for the compilation of information and review of procedures (with respect to the administration) for Federal elections.

NIST

Subtitle B, section 231 of the Help America Vote Act requires that the EAC provide for the testing, certification, decertification and recertification by a federally accredited laboratory for the systems used in federal elections. The EAC has made National Institute of Standards and Technology’s (NIST) National Voluntary Laboratory Accreditation Program (NVLAP) accreditation a requirement as part of its VSTL accreditation program. NVLAP accreditation is the primary means by which the EAC ensures that each VSTL meets and continues to meet the technical requirements of the EAC program.

NVLAP

The National Voluntary Laboratory Accreditation Program (NVLAP) is a U.S. Government entity administered by the National Institute of Standards and Technology (NIST), an agency of the U.S. Department of Commerce. NVLAP requirements are mandatory and must be fulfilled to achieve and maintain accreditation. NVLAP requirements are found in NIST Handbook 150, NIST Handbook 150-xx series, NVLAP Policy Guides, and NVLAP Laboratory Bulletins.

NVLAP Handbook 150:

3.6.1 NVLAP grants initial accreditation when a laboratory has met all NVLAP criteria for accreditation. One of four accreditation renewal dates (January 1, April 1, July 1, or October 1) is assigned to the laboratory and is usually retained as long as the laboratory remains in the program.

NVLAP accreditation is valid from the date of granting accreditation to the assigned renewal date. If accreditation is not renewed by the laboratory prior to the renewal date, the accreditation will expire.


3.6.2 When accreditation is granted, NVLAP provides a Certificate of Accreditation and a Scope of Accreditation to the laboratory.
3.6.3 The accreditation documents include the following information:
a) the name and address of the laboratory that has been accredited;
b) the laboratory’s Authorized Representative;
c) the effective and the expiration dates of the accreditation;
d) the NVLAP Lab Code.

Renewal

3.7.1 Each accredited laboratory receives a renewal notification before the expiration date of its accreditation to allow sufficient time to complete the renewal process.
3.7.2 Fees for renewal are charged according to services required as listed on the NVLAP website.
3.7.3 Both the required information and fees shall be received by NVLAP prior to expiration of the laboratory’s current accreditation to avoid a lapse in accreditation”

Additionally, the EAC issued a Notice of Clarification (21-01) addressing this very issue in July of 2021.
NOC 21-01:
VSTL Accreditation Status Issued by Program Director on July 23, 2021 Section of Manual to be Clarified:

“Voting System Test Laboratory Manual, version 2.0: 3.8. Expiration and Renewal of Accreditation. A grant of accreditation is valid for a period not to exceed two years. A VSTL’s accreditation expires on the date annotated on the Certificate of Accreditation. VSTLs in good standing shall renew their accreditation by submitting an application package to the Program Director, consistent with the procedures of Section 3.4 of this Chapter, no earlier than 60 days before the accreditation expiration date and no later than 30 days before that date. Laboratories that timely file the renewal application package shall retain their accreditation while the review and processing of their application is pending.”

Authority

With HAVA’s enactment, the responsibility for developing voting system standards was transferred from the FEC to the EAC and their new iterations are now the EAC Voluntary Voting System Guidelines. Voluntary Voting System Guidelines (VVSG) are a set of specifications and requirements that voting systems, including voting devices and software, must meet in order to receive a certification from the EAC. Although participation in the program is voluntary, adherence to the program’s procedural requirements is mandatory for participants.

Voting System Test Laboratory Accreditation Program Manual contains the regulations for the Voluntary Voting System Guidelines. The procedural requirements of this Manual will supersede any prior laboratory accreditation requirements issued by the EAC. This manual shall be read in conjunction with the EAC’s Voting System Testing and Certification Program Manual (OMB 3265-0019).AC.


Voting System Test Laboratory Accreditation Program Manual page 4, section 1.6.2.3
“The EAC accredits VSTLs, after the National Institute of Standards and Technology (NIST) National Voluntary Lab Accreditation Program (NVLAP) has reviewed their technical competence and lab practices to ensure the test authorities are fully qualified.”

The Voting System Test Laboratory Accreditation Manual agrees with the NIST NVLAP Handbook 150 in regard to the expiration and renewal requirements for continued accreditation, and every other requirement of the Handbook 150. See section 3.8 of the Voting System Test Laboratory Accreditation Manual:

Expiration

3.8. Expiration and Renewal of Accreditation. A grant of accreditation is valid for a period not to exceed two years. A VSTL’s accreditation expires on the date annotated on the Certificate of Accreditation. VSTLs in good standing shall renew their accreditation by submitting an application package to the Program Director, consistent with the procedures of Section 3.4 of this Chapter, no earlier than 60 days before the accreditation expiration date and no later than 30 days before that date.

Laboratories that timely file the renewal application package shall retain their accreditation while the review and processing of their application is pending. VSTLs in good standing shall also retain their accreditation should circumstances leave the EAC without a quorum to conduct the vote required under Section 3.5.5.
Now that we have established who the EAC is, and their reliance on the NIST’s NVLAP accreditation program, the Handbook 150, the Voting System Test Laboratory Accreditation Manual, and the expiration and renewal requirements, let’s look at what that means to us on the state level.

Washington elected to participate in the Voluntary Voting System Guidelines and has an obligation to follow the guidelines. Not only that, but Washington state law requires our election systems to be certified by a federally accredited laboratory and requires the SOS to only certify machines which have been approved by the appropriate voting system test laboratory approved by the United States election assistance commission. Remember, the EAC serves as the national clearinghouse with respect to the administration of elections. There is no alternative to the requirements of the EAC for the system requirements and standards other than the VVSG, and the NVLAP accreditation program.

Washington State Law

Washington state requires our voting equipment to be certified on the Federal level, as well as a state certification done, which is administered by the Secretary of State. See the applicable laws below.

WAC 434-335-040
No voting device or its component software may be certified by the secretary of state unless it:
(f) Has been tested and approved by the appropriate voting system test laboratory approved by the United States election assistance commission.


WAC 434-335-060
Examination of equipment.
Secretary of state staff will initiate an examination of the applicant’s equipment after receiving a completed application and a working model of the equipment, documentation, and software to be reviewed. The examination verifies that the system or equipment meets all applicable federal guidelines and consists of a series of functional application tests designed to ensure that the system or equipment meets Washington state law and rules. The software tested shall be the approved software from the voting system test laboratory. The examination may include an additional voting system test laboratory test at the discretion of the secretary of state.”


RCW 29A.12.101
Requirements of tallying systems for approval.
The secretary of state shall not approve a vote tallying system unless it:
(5) Except for functions or capabilities unique to this state, has been tested and certified by an independent testing authority designated by the United States election assistance commission. Unfortunately, these laws were not followed by the SOS or by Pro V&V, who was the laboratory that tested several voting systems currently used in Washington state, and across the country for that matter. Pro V&V was accredited initially in 2015.

The certificate of accreditation has an expiration date of February 24th, 2017, which is printed directly on the certificate. The next accreditation issued to the laboratory was in January of 2021. The new certificate accreditation, instead of showing an expiration date, it states that “accreditation remains effective unless revoked upon a vote of the commission.” However, if you go to the NIST’s NVLAP website, it shows there is an expiration date for the accreditation. It is not possible to have an accreditation which is indefinite when one of the requirements for the accreditation has an expiration date and renewal requirement.

Excuses…

The EAC issued a statement blaming Covid-19 for the reason Pro V&V failed to maintain their accreditation, even though the previously issued accreditation expired in 2017, and Covid started in 2020. Which is contrary to the statement they released about the accreditation not to exceed two years. Both statements were made within a six-month period. The EAC is inconsistent with their policies and whether or not they enforce them.

They also issued a statement which claimed the lapse of the proper accreditation was a clerical error, and a laboratory’s accreditation is only revokable upon request. That is true in section 5.2 of the Accreditation Manual, however, that is not the section which covers expiration, as explained above.

Their statement is not incorrect, it just addresses the wrong issue. It’s possible this statement was given broadly and intended for a question of whether or not accreditation was revoked. There is also a section in the manual addressing suspension Their statement only is in reference to revocation specifically. For this to be true, and revocation was the only manner in which accreditation would cease, the rest of the regulations would have to be invalid.


The EAC appears to be suggesting that Pro V&V has been accredited the entire time, without interruption. That cannot be the case according to the NVLAP accreditation certificate, which was issued in 2021 and expires in 2022. Notice the one-year expiration date. For a newly accredited lab, the lab is required to renew after 1 year, then biannually thereafter.

If Pro V&V was accredited the entire time, the certificate would have a 2-year expiration date. The lab was newly accredited. Therefore, not accredited during the time it falsely certified the machines currently used in Washington state and nationwide. See the certificate below. One year renewal requirement. This is a newly accredited lab, meaning there was a lapse in accreditation status.

Accreditations which should have been renewed in 2017 and 2019 have not been located at this point. They are not available on the NIST’s or the EAC’s websites, where the 2015 and 2021 records are found.

Kim Wyman

Kim Wyman, then Washington Secretary of state had a different excuse for the VSTL not renewing their accreditation. See for yourself.

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